20
very
THE HONGKONG WEEKLY PRESS AND
(January 11, 1908.
of cancellation-I am very strongly of opinion | the plaintiffs stating that they had bwn 19. that they were entitled to act and tak the
quested by telegraph to recaira the guid aum consequences. These consequences might have on behalf of the Kin Hing firm of Amoy. Later, been, if the United States had repented, and on the 12th February, after the receipt of s ultimately decided to take the vessal on agai", | further telegram_purporting to come from that there won'd have been no ship at all at the said Wing Fung firm, and on farther ap: their disposal, for the owners might have sant plication by the def ndante the plaintiffs prid her elsewhere directly the charter party wis
to the defendants the sum of 85,000. cancelled. The result would have been an action for damages for breach of the agreement. In the event the United States Governmeal did cangal so that there were n1 cong qu »nose. Being therefore of opinion that Ostaci could | act I am also of opinion that Carlowitz was entitled to act. The whole question appears to
ma to turn on the fact that there was no sub- charter by Ostacia to the United States Govern. men', but an independent agreement itself giving rise to rights and duties between the parties and, it must specially be noted, A0 agreement which really has no legal connection in the Carlowitz charter party for it contemplated an extension of the hire of the vessel beyond the tim› covered even by Carlowitz's extended term. I think this is an important matter on which stress his not been laid sufficiently, for the whole of thaxa occurrences might have happened after the termination of the charter party and I cannot
sea how the position of affairs as between Os'acia and the United States Gov-rament cin vary accordingly as the Ostacia-Carlowitz ohar- ter was in existence or not. I agree to this: That so far as the owners are incarned Carlo- witz stands in the same position as Ostaria, and that so far as Oatacia is concerned Carlo. witz stands in the sam- position as the owners, but this shows that the rights wa have to can-
constitution of the Courts in this Colony the only appeal Court f om the trial in the first instance is to a Court in which the Judge who tried the case sits, and if he is the Chief Justice he has the preponderant voice. It is not surprising that reference shoul! so frequently be inade to this fact; bat eo far as I am concerned I wish to say that in giving judgment in a case tried before me, I endeavour to be guided by the language used by Mr. Justice Blackstone in s old case indeed: "My present opinion is (but liable to correction upon more fall consideration, if the question should come again before the Court in a more solemn way)" I trust that this will, to some extent, not ex-clly encourage ap. peals from my decision, but at least assure the the profession that I endeavour, as far as p18- sible, to look at the case from a fresh standpoint, if such is put before the Fall Court on more solamn arbitration. Now in this case there was a fresh standpoint put forward; but before dealing with it, desire to say that this was eminently a case in which a second argument was rightly put before the Court, quite apart from the fact that it has produce a differenca of opinion between the Judges, The CBSA is excedingly puzzling; and all I can sy is that, if people will fangle themselves up in so Gordian a fashion, they must not be surprised if this entanglement in lieu of cutting the knot is an expensive process. The facts ara sufficiently set out in the report of the case i the Court, and I need not recapitulate them. I shall onl refer to the first part of it with which the appellant quarie's. In my judgment in the Court below I said: "The case stands thus: Were the circumstan es such as to entitle the United States to re cind its contract with Ostacia, and so entitle that Company to rescind its contract with Carl witz, and s entitle Carlowitz to re: cind their contract with the owners ?" It now transpires that one important fact was omitted bere from con-ideration: that the first rescission was by Ostacia of the contract with Carlowitz, that than Carlowitz rescinded; and that this occurred prior to the rescission of the United States Governmeu! which occurred five days afterwards, and was up-calling in virtue of righ'a arising out of the parently independent of the rescission by Olacia | and Carlowil. There was therefore no rescision en suite as I had assumed, and the questiu is whether Carlowitz could resciud independently of any action by the United Stat 8.
The contractual relationship arising out of the charter party still existed between Carlowitz and the owners; it was not broken by the su charter to Ostacia, still less by the re-charter by Ostacis to the United States; and it was org that all the consequences of this relationship most ensue, including the right to rescind for good cause. I am of opinion for the rat sons given in my judgment, that the failure to deliver the vessel every day during the continuance of the charter party entitled the charterer to rescind it, and did not. give rise merely to an action for damages. | The question resolves itself th refore into this:Can it be said that in the circumstances which actually happened there was a failure to deliver the vessel to the char ́erers, '.e., to them through the United States Goveru- ment ? The United States Government had
si ler are rights arising out of the charter party and not out of an independent contract, to which although all parties knew all about it Carlowitz were not in fact parties. This can hest hi tested be asking the question-Could The United States Government have sned either Carlowitz or the owners? I think not. The fact therefore being that the ship was not delivered I think this justified Ostacia in can.
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The said $5,000 was paid to, and received by, the defendant's under mistaken balief common to both plaintiffs and defendants that the mid Wing Fung firm as agents for the plaintiffs had purchased from the said Kis Hing firm bill of exchange on Samarang,' and that the plaintiffs WATA indebted to the said Kin Hing firm in the sum of 81,000 and that the said telegrams were sent by the maid Wing Fang firm whereas in fach the said Wing Fung firm had not purchased any bill of ex. change from the arid Kin Hing firm and the n'aintiff‹ were not indebted tɔ the said Kin Hing firm, and the said Wing Fang firm had not sent the said telegram2.
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On the 13th February the plaintiff having learned that the gaid talograms had not in fact bean sant by the said Wing Fang firm, informed the defendants and demanded repayment of the anid $5,00 ), but the defaudants refused pending farther information from Amoy,
The defendants have not repaid the plaiutiffa the said an or any part thereof. The plaiat iff‹ therefore, c'sim $5,000 and interest thereon at the rate of sight ner cont. per annum from the 13th February, 1907 to payment or judgment.
The statement of defence was as follows:- On the 12th February. 1907, the plaintiff re aived a telegram which was notully sad in fach sant by the Wing Fung firm of Amov re- questing the plaintiffs to ow the defendant, the sum of $1,000. The defendan's, however do not admit that the said telegram ovatsinal any reference whatever to any bill of exchange, nor do the defendants admit that the siid re- quest was connected in any way with any bill of exchanga. The defendante admit that they requested payment of $5,00a from the plaintiffs. The defendants so requested pay. ment in paren^nce of telegraphio instructions from the Kin Hing firm of Amoy, which carries on a bioking business, reqgesting the defendanta to collect the sum of $5,000. from the plaintiffs on behalf of the said Kin Hing frm. The talegram which is referred to in the statement of clai was actually and in fact sent to the plaintiff by the Wing Fang firm of Amoy, and The Puise Jude-I regret to disagree the plaintiff did, in reliance on such teleg “am. with the judgment of the learned Chief Justice, pay to the defendants the sum of 5,000 on behalf and I will simply content myself by stating of the said Kin Hing firm The defendants forth. that I think Carlowitz was not entitled to with on the said 12th February, 1907 telegraph. cancel at the time they did Therefore I thinked to the said Kin Hing firm informing them of the appeal should be allowed, and supposing the guid payment and credited the said Kia it to be allowed, the question of the amounts Hine firm in account with the said am of due by the parties will be a matter for further | 85,000 ace rlingly. The defendants do not
charter party, quite regardless of what its position would have been vis à vis the United State Government, and as Osticia's 037- cellation was right so Carlowi'z's caucellation must have been right I, therefore, thick that the judgment should stand and the appeal be dismissed with coats,
consideration.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT
("HIEF JUSTICE).
PAID BY MISTAK
The Ng Yuan Ying firm brought action
Mr. M. W. Slad», instructed by M •. G. K. Hall Bratton (of Mosera. Bratton and Hett) appe tred for the plaintiffs, and Hon. Mr. H. E Pollock, K.C, instruct d by Mr. Daniels (of Messes. Johnson, Stokes and Master) for the defendants.
admit that the said Wing Fang firm were agents of the plaintiffs, nor do they admit that the Wing Fang firm over gave the plaintiffs reason to believe, peʼthat the plaintiffs ever did believe, that the said Wing Fang firm had purchased from the Kin Hing firm a bill of ex- change either on Samarang or on any other place, от Яt all. The dafontanti denv that the plaintiff · paid over the said sam of $5,000 to the defendants under any such halief. At the time the defendants reovived the $5.00) from the plaintiff, but they did so solely in pursuanos of the instructions from the Kin Hing firm, which instructions mide no mention oʻ any bill of archang › whatever or of
•ny indebtedness or alleged indebtedɑess of the Kin Hing firm to the plaintiff‹ The de- fendants have since la rued that the Kin Hing Mr. Slude read the statement of claim AR firm received the sum of 85,000 under the fol filw«: -The plaintiffs are marchants carrying lowing circumstances. The Wing Fang i m on busios at 64, Bìnhẩm. S ́rand West, Th- owed the respectiva sam“, vis. $300 and defendante ans marchan's carrying on basiasse $1,974 29 to the Fuur Yaea frm and to the at 316 Da Voix Road Central. The plaintiffs Tai Hiny firm, both of Amoy; and the Wing in addition to their business as merchants carry Fang firm apon being pressed by them for on a bill discounting bacinese sad for that
nayment entǝərad into agreement with the two purpose hire as agents in Amoy in the Emoire firms that some of $300) and $2,000 should of China a firm known as the Wing Fung firm. h. paid in Hongkong by the plaintiff to on the 12 b February. 1907, the plaintiff pa- the def-ad inta on behalf of the Kin Hlog caired a telegra.n purporting to come from the Bem, the later firm haring agreed to credit said Wing Fung firm requsing them to the Fang Yuen and Tal Bing firms res- pay to the defendants the sum of $5.01pectively in their respective socounts with In r-spac ot H Lill of -x-bange Og the Kid Ping frm, and the Fang Yaen and Samarang, purchased in Amoy. Shortly after- Tai Hing firms having each agreed on their wards on the 12th February, 1907, the departs with the Wing Fang firm to credit the fendants demanded payment of 85,000 from said Wing Fang Arm with like sums of $3,000
not definitely renounced all hope of getting the against the Lap Kee firm to recover the sum of ship in spite of these threats of cancellation, 3, 0), the amount paid to the defen lants by and therefore it might be said that the char-mistake in respect of a hill of exchange. terers had not definitely renounod all hop but did that therefore deprive them of all right to act? Even this does not state the position quile accurately. Carlowitz cancelled with the owners because Ustacia had cancelled with them, reporting the cause the failure to deliver. Can it be said that Carlaitz was bound to enquire further into the cir· | cumstances to see if Ostacía's cancellation was justified? The position on be put in this way-Were Carlowitz bound to wait till the United States Government cincelled? Ur was that firm entitled to act and take the conse. quences ? Much light may be thrown upon the question if we consider what the position of Östacis was with regard to the United Stat Government and the question as to this may be stated in a similar way : Was (stacia bound to wait till the United States Government can o:lled P Or was that firm entitled to act and take the consequences? In the circumstances - endless delay in putting the ship at the service of the United States Government, and threats
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